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The Difference Between Negligence and Negligence Per Se


Negligence is a central component of personal injury law. Typically, the injured plaintiff must prove that the defendant’s failure to use reasonable care caused those injuries.

Proving negligence can be difficult. But in some cases, the law creates a legal shortcut, making it easier for injured plaintiffs to recover compensation. That “shortcut” is called negligence per se.

What Is Negligence?

Florida defines negligence in the standard instructions courts give to juries in personal injury cases. Under that definition, negligence means “the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances.” Specifically, it means “doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances.” 

But how do you prove negligence? There are four basic elements that personal injury plaintiffs must prove in order to win their lawsuit:

  1. The defendant owed the plaintiff a duty of care. For example, drivers owe a duty to pedestrians legally crossing the street not to run into them.
  2. The defendant breached that duty of care. If a driver fails to stop at a crosswalk and hits a pedestrian, then that is a major breach of the duty owed to pedestrians.
  3. The plaintiff suffered an injury. In the car-hits-pedestrian scenario it’s likely that the pedestrian would suffer an injury.
  4. The defendant’s breach caused the plaintiff’s injury. In some cases an injured plaintiff’s own negligence contributes to the injury. But if the pedestrian was lawfully in the crosswalk when the driver ran into him then the plaintiff can prove that the accident caused the injury. (Florida is a comparative fault state, which means that the plaintiff’s percentage of negligence reduces the amount of damages he can receive.)

What Is Negligence Per Se?

Negligence per se is a legal doctrine that makes it easier to prove that a defendant acted negligently. A defendant is negligent if:

  • He violates a public safety statute;
  • The plaintiff is a member of the class that the statute intended to protect;
  • The plaintiff’s injury is one that the statute was designed to prevent; and
  • The defendant’s violation of the statute caused the plaintiff’s injury.

Two examples of negligence per se in Florida are driving under the influence of alcohol and allowing your dog to bite someone (or failing to prevent it from happening).

The standard jury instructions state that violation of a public safety statute like the prohibition against drunk driving “is evidence of negligence. It is not, however, conclusive evidence of negligence.”

An experienced attorney can help you establish a viable negligence or negligence per se claim.

Contact Us Today

Contact a Miami personal injury attorney at The Pendas Law Firm today for a free consultation if you have been injured by a negligent defendant. We will examine the facts of your case and apply the applicable legal theory — whether negligence, negligence per se, or something else — to help recover the compensation that you deserve.

The Pendas Law Firm also represents clients in the Fort Lauderdale, West Palm Beach, Orlando, Jacksonville, Fort Myers, Tampa, Daytona Beach and Bradenton areas.




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